[Introduced February 3, 2011; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §55-7-9a, relating to
damages for acts causing physical injury; and prohibiting
medical monitoring relief absent manifest present injury or
disease.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §55-7-9a, to read as
follows:

ARTICLE 7. ACTIONS FOR INJURIES.

§55-7-9a. Claims for Medical Monitoring.

(a) Notwithstanding the decision of the Supreme Court in the
case of Bower v. Westinghouse, 522 S.E.2d 424 (W. Va. 1999), in any
civil action in which an individual seeks relief of any kind
including damages and equitable relief for the wrongful or tortious
acts of any person, such relief may not include future medical
monitoring, testing, treatment, services, surveillance, or
procedures of any kind, including the costs and expenses associated
therewith, unless such future medical monitoring, testing,
examination, treatment, services, surveillance or procedures are
directly related to a present manifest physical injury or disease
which was caused by or directly related to such tortious or
wrongful acts and which was found to have caused present physical
impairment.

(b) Nothing in this section creates, recognizes, or ratifies
a claim or cause of action of any kind.

(c) It is the intent of the Legislature that this legislation
overrules the decision of the Supreme Court of Appeals of West
Virginia in the case of Bower v. Westinghouse, 522 S.E.2d 424 (W.
Va. 1999). This section applies to any claim or cause of action
pending on the effective day of this section.

(d) For purposes of this section “person” means any
individual, partnership, firm, society, association, trust,
corporation, other business entity, or any agency, unit, or
instrumentality of federal, state or local government.

(e) If any portion of this section or any application of this
section is subsequently found to be unconstitutional or in
violation of applicable law, it does not affect the validity of the
remainder of this section or such applications of the section as
are not unconstitutional or in such violation.

NOTE: The purpose of this bill is to require that damages for
the costs of future medical treatment and testing be directly
related to a current manifest physical injury or disease.

This section is new; therefore, strike-throughs and
underscoring have been omitted.